On September 19th and 20th, 2013, the Peruvian government organized a conference in Lima to discuss with the local business community the advantages to becoming a party to the OECD Anti-Bribery Convention and the steps that have already been taken and that still need to be taken by Peru for this to happen. This post summarizes the steps taken and pending.
In March 2009, Peru filed a request before the OECD expressing its interest in becoming a party to the Anti-Bribery Convention. In May 2011, Peru presented its “pre-access” questionnaire to the convention and in September 2011 the country was formally invited to participate for 1 year as an “ad-hoc observer” of OECD`s Working Group on Bribery. In January 2012, Peru complemented the “pre-access” questionnaire and in September 2012 the OECD informed Peru that it had not been admitted as a member to the Convention. Particularly the OECD expressed concerns about the fact that the Peruvian legislation does not establish the liability of legal persons for the bribery of foreign public officials.
The OECD did not consider current Peruvian law to be sufficient to meet requirements under the Convention, apparently for three main reasons. First, the responsibility of legal entities for bribery of foreign officials is currently limited to cases in which the individuals who commit the wrongdoing are also sanctioned. In other words, the responsibility of the legal person is conditioned on the liability of individuals. Second, the level of authority of the person who commits the conduct creating liability of the legal entity should be more flexible. Third, Peruvian law does not set forth monetary sanctions for bribery of foreign officials.
The Peruvian government is currently taking steps that should help it join the Convention in the future. The country’s Criminal code was amended in August 2013 to allow the confiscation of instruments and proceeds of crimes. Moreover, the Peruvian Congress has recently given a favorable opinion on draft bill 2470/2012, which includes fines as a sanction for the crimes of local and transnational corruption. A vote on this law is expected in the near future. The main issue that Peru is struggling with now is related to the implementation of direct corporate liability for bribery cases.
The conference provided insights into the context in which the Peruvian Government is considering passage of the legislation. Mr. Daniel Figallo, the Peruvian Minister of Justice, stated that passing a law that holds legal entities liable for bribery of foreign official is a priority for the government. He stated that a new bill about corporate liability for bribery cases would be presented in the near future; however, the government wants to discuss it with civil society first.
The public debate that the Peruvian government is promoting on the reforms to corporate liability legislation is very positive. It should serve not only to reduce resistance from certain parts of the local business community but also as an opportunity for civil society to take advantage of it and participate in the legislative process. The recent experience of Brazil is illustrative, where its new anti-bribery law was extensively discussed with civil society and improvements suggested by civil society were incorporated into the bill during the legislative process.
During the seminar, experts from different countries also had the opportunity do discuss different avenues that countries can take to implement legislation that fulfills the requirements of the OECD Convention. Experts emphasized that the Convention does not require corporate criminal liability – a concept that faces a lot of resistance in Peru – and highlighted successful examples of similar legislations recently approved by other members of the OECD Convention (e.g., Brazil).
While Peru is one of Latin America’s fastest growing economies – the International Monetary Fund reported Peru’s GDP growth at 6.3% in 2012 – recent estimates by the Peruvian Comptroller General, as reported by local media, indicate that corruption is costing the country around $3.5 billion per year. Joining the OECD Anti-Bribery Convention could be a significant step forward in Peru’s fight against corruption.
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Post authored by Carlos Henrique da Silva Ayres, FCPAméricas Contributor